TaxTMI 
TaxTMI 
2015 (7) TMI 1416
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....dgment. 2. The facts involved in each case, for the purpose of understanding the issues, are narrated separately. 3. W.P.(C). No. 11822/2013 is filed by one Karthikeya Varma, an office bearer of KCA. KCA has decided to construct a stadium of International standard and purchased a land in Edakochi at Ernakulam. A complaint was filed before the Court of the Enquiry Commissioner & Special Judge, Thrissur by one Joy Kaitharath, alleging corruption in the purchase of the land, against the petitioner and a few others. The court vide order dated 7/7/2011 forwarded the complaint to the Director of Vigilance and Anti Corruption Bureau, Thiruvananthapuram for enquiry and report. Thereafter, an FIR was registered on 18/3/2013. The FIR is produced as Ext. P4 in W.P.(C). No. 11822/2013. 4. W.P.(C). No. 20071/2013 is filed by one T.N. Anantha Narayanan, an office bearer of KCA, challenging the same proceedings which are under challenge in W.P.(C). No. 11822/2013. 5. W.P.(C). No. 1383/2014 is filed by one T.C. Mathew, who was the Honorary Secretary of KCA. He is also the present President of KCA. The party respondent one Harish V. filed a private complaint before the Vigilance Court, Kottayam....
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....PE) [(1998) 4 SCC 626] and submitted that a public office is attached with certain responsibilities of more or less of a public character and argued that none of the officials of KCA are holding the office having responsibilities of public character. 10. Shri M.K. Damodaran, learned Senior Counsel appearing for T.N. Anantha Narayanan relied on the judgment of the Hon'ble Supreme Court in Government of Andhra Pradesh v. P. Venku Reddy [(2002) 7 SCC 631] and the judgment of the Division Bench of this Court in Rafeek v. State of Kerala [2005 (2) KLT 29] and argued that the Court is required to adopt a purposive approach based on the Legislation while construing the definition of public servant under the PC Act. It is further argued that the Legislature never intended to give a broader meaning to a public servant to include discharge of duties by an office bearer of a private body. 11. The learned counsel Shri K.N. Abhilash relied on the earlier order of this Court in Crl.M.C. No. 2726/2009 filed by one K. Balaji Iyengar, an office bearer of KCA, challenging criminal prosecution by the Vigilance Court. In the above Criminal M.C., it was held that KCA is discharging State function....
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....n the above judgment referred to the order of this Court in Crl.M.C. No. 2726/2009 and referred it as having a persuasive impact on the larger issue on function of BCCI, to determine BCCI as a State. 14. The learned Special Government Pleader Shri C.S. Manilal would argue that the writ petitions are not maintainable at this stage to interfere with the investigation ordered by the Vigilance Court. It is further submitted that it is a matter of investigation to find whether the petitioners are discharging public duties or holding the office of public servants. The learned Special Government Pleader also drew attention of this Court to the definition of 'public duty' under Section 2(b) read with definition of 'public servant' in Section 2(c)(viii) of the PC Act. The learned Special Government Pleader further submitted that by virtue of combined reading of the above provision, there is prima facie case to proceed against the petitioners. 15. The registration of FIR or inquiry at initial stage is a preliminary step for an investigation relating to commission of an offence. It is a settled principle of law that the power of quashing an FIR or an enquiry or any investiga....
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.... to purchase of land by the KCA for the purpose of construction of Cricket stadium. 20. There is no dispute in this case that KCA is a body constituted under the Travancore Cochin Literary, Scientific and Charitable Society Act, 1955. The Memorandum and the Rules of the Association would go to show that they have monopoly in promoting cricket in the State and the only affiliated body from the State with BCCI. KCA regulates and controls all District Associations affiliated with it. It also regulates as to how the District Associations will be eligible for affiliation with them. The activities of KCA in the State is akin to the activities of the BCCI at National level. 21. In Judicial Review of Administrative Action (5th edition) by de Smith, Woolf and Jowell in Chapter 3, para.024 it is stated on public function as follows: "A body is performing a 'public function' when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest....
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....rumentality or an agency of the Government. 24. In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology [(2002) 5 SCC 111] a Seven-Judge Bench of the Hon'ble Supreme Court laid down the following tests to examine a body to treat it as State:- "i Formation of the body ii Objects and functions iii Management and Control iv Financial aid, etc." 25. The Hon'ble Supreme Court in various judgments has laid down parameter guidelines for identifying a body as coming within the definition of other bodies. In GM, Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad, [(2003) 8 SCC 639] it was held by the Hon'ble Supreme Court that the real test to consider the status of the body is to see how far it is controlled by the Government and not the forms in which the body is constituted. Even a Company would be a State, if terms and conditions of such employment are governed by the Statute or the State {see the judgment in HEC Voluntary Retd. Employees Welfare Society v. Heavy Engineering Corpn. Ltd., [(2006) 3 SCC 708]}. 26. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, [(1975) 1 SCC 421] it was observed by the Hon'ble Supreme Court as follows: "The gro....
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....onomic development of a section of the people. It seeks to achieve the principles laid down in Article 47 of the Constitution of India viz. nutritional value and health. It undertakes training and research work. Guidelines issued by it are binding on the societies. It monitors the functioning of the societies under it. It is an apex body. We, therefore, are of the opinion that the appellant herein would come within the purview of the definition of "State" as contained in Article 12 of the Constitution of India." 30. The functional approach is essentially to examine the scope of function of the body, when such body otherwise cannot be considered as a State or other authorities under Article 12 of the Constitution. There are many private bodies which discharge statutory functions. These statutory functions discharged by the private bodies are certainly amenable to the jurisdiction of the High Court under Article 226 of the Constitution. For example, Private Banking Company, initiating SARFAESI proceedings. The Private Banking Company cannot be considered as a State or other authorities under Article 12 of the Constitution except to the limited purpose in relation to the discharge of....
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....t civilian awards like the Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri apart from sporting awards instituted by the Government. Such is the passion for this game in this country that cricketers are seen as icons by youngsters, middle aged and the old alike. Any organisation or entity that has such pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity. 34. The functions of the Board are clearly public functions, which till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act. Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law take over or regulate but even lends its assistance to such a non-government body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial revie....
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....f the Government has changed and the State is distancing itself from commercial activities and concentrating on governance rather than on business and the need to extend the scope of other authorities is no longer necessary. It was further held that there is a dividing line between a State enterprise and a non-State enterprise, which is distinct and the judiciary should not be an instrument to erase the said dividing line unless, circumstances of the day require to do so. It was also held by the majority that in the absence of any authorisation by the State, if a private body chooses to discharge a public function, which is not prohibited by law, it would be incorrect to hold that passion of the body would make it an instrument of the State. 36. The majority judgment in Zee Telefilms Ltd. case [supra] was followed in BCCI's case [(2015) 3 SCC 251]. In that view of the matter, BCCI or KCA which discharges same function at State level cannot be treated as State or other authorities. However, as held in the above cases, if they discharge State functions or public duties, certainly, those functions or duties can be subjected to judicial review on Constitutional standards. 37. It ....
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....#39;power' is 'liability'. Thus, someone who holds the power can control, reduce and expand the entitlement of the men upon whom the power is imposed. The men bears 'liability' and exposed to exercise of such power. In a Constitutionally governed State, ordinarily, this power to make law, derives from the Constitution. However, due to expansion of State activities, as seen from the judgments afore-noted, certain activities of the private body or Corporation are also capable to control reduce or expand the entitlements. These exercises of power could be classified as a sovereign or State function. 43. On the other hand, 'public duty' refers to a correlative 'public right' based on the jural correlatives as legal position, expounded by Wesley N. Hohfeld. In the context of governance or discharge of Governmental function, the 'public right' is synonymous with 'legal obligation'. The public duty thus, is a public function or a legal obligation discharged by a public servant under the command of public right. These public rights necessarily, presuppose existence of positive law of the State or valid Governmental directions. The "publi....
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....009 wherein this Court held that the office bearers of KCA are public servants as defined under S. 2(c)(viii) of the PC Act. It is to be noted that the learned Single Judge relied upon the minority view in Zee Telefilms Ltd. Case (supra) to hold that the officers of the KCA are performing a public duty. The learned Single Judge observed so, after adverting to the nature and function of the office of the KCA as follows: "Even if the Cricket Association is not an other authority, and thereby not an instrumentality of the State, for the purpose of Article 12 of the Constitution, if the Secretary and President of the Association, who hold those offices are authorised or require to perform any public duty by virtue of holding their offices, they would be public servant as defined under sub-clause viii of Section 2(c) of the PC Act." The Special Leave Petition against the order in the above Criminal M.C. was dismissed by a non-speaking order. If the dismissal of the Special Leave Petition is without support of reasons, the doctrine of merger would not be attracted. {See Kunhayammed v. State of Kerala [2000 (3) KLT 354 (SC)]}. Therefore, dismissal of the Special Leave Petition filed by....